A new issue of the Journal of Supreme Court History has come out and as is often the case, that means there is a new article about Louis D. Brandeis. This issue’s (volume 39, number 2) article was written by Jessie Steffan while she was a law student (she is now a clerk at the District Court for the Eastern District of Missouri) and it won the Supreme Court Historical Society’s 2013 Hughes-Gossett student prize. Titled “Doing Brandeis Justice: the Development of the Liebmann Dissent.” Steffan attempts to reconcile a seeming paradox that has perplexed many commentators: how a man famous for his stance against monopolies could uphold a state law that seemed to promote monopolies in a particular business (in this instance, ice manufacturers in Oklahoma.) Ms. Steffan argues that there is no contradiction at all and buttresses her case with looks at previous opinions and articles written by Brandeis as well as his views on public utilities versus private businesses. She makes a well reasoned argument and it makes for compelling reading for anyone interested in learning more about one of Brandeis’ most famous dissents. Once again, since the article appeared in the Journal of Supreme Court History, it will be hard to find. It is available online, but that link will likely not for anyone who does not have access to the Wiley Online Library. Everyone else is going to have to read a paper copy at their local law library. Or buy a subscription to the journal.
Another nice thing about Ms. Steffen’s article is that it led me to another article about the case that I was not previously aware of. Thirteen years ago historian Nigel Anthony Sellars published an article titled “‘Cold, Hard Facts': Justice Brandeis and the Oklahoma Ice Case” (63 Historian 249-267). This article is a behind the scenes look at the facts of the case. Just who was Liebmann and why did he refuse to buy a license to manufacture ice? And why did Oklahoma, that “laboratory of democracy”, think that ice needed regulating anyway? The answers are all here and they give some interesting background to the decision. This article is also available through the Wiley Online Library.
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We are always on the lookout here at the University of Louisville Law Library for items to add to our collection of Brandeis papers. We get the occasional stray letter or pamphlet but for the most part since our collection is already so large, there aren’t many significant items left to acquire. So there are times when we add items to the collection that are somewhat peripherally related to the collection. As is the case with our latest acquisition, an item that I am frankly somewhat conflicted about.
It is a broadsheet published by a man named Robert Edward Edmondson in 1935 titled Justice Brandeis Unfit?. It is a nasty piece of work. It is a piece of anti-Roosevelt and NRA propaganda with an emphasis on Brandeis’ position on the Supreme Court and his alleged role as the architect of the NRA. But it is primarily a piece of anti-Semitic propaganda. There was, according to Edmondson, a Jewish conspiracy to overthrow the government and hand it to the Communists. To support his thesis, Edmondson uses newspaper editorials, out of context quotes from Brandeis’s writings and, of course, the Protocols of the Elders of Zion. But it wasn’t just Brandeis who gets vilified. Seemingly every Jewish intellectual of the day was part of the conspiracy: Harold Laski, Felix Frankfurter, Benjamin Cardozo, Albert Einstein and Stephen Wise all get name-checked. Even Brandeis’ daughter Susan is dragged through the mud. Among her crimes were the facts that she was a member of the ACLU and that she kept her maiden name after she got married!
I had never heard of Edmondson before we purchased this broadsheet, so I had to look him up in Wikipedia. He was journalist, and naturally a Nazi-sympathizer, who published many of these pamphlets that “exposed” the Jewish/Communist conspiracy to take over America. He believed that fluoridation of drinking water was part of the plot and he also published works that “proved” that Roosevelt and Churchill were Jewish.
I feel a little uncomfortable adding this man’s ravings into our collection, but there is value in having it. It helps researchers to know what Brandeis’ critics were saying about him, even when some of those critics were full on crazy. And the collection already has other pieces of this nature that had been collected by Brandeis himself. And, unpleasant as it is to look on it occasionally, it serves as a good example of the type of attitude that Brandeis probably had to deal with every day.
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While browsing through our collection of Louis D. Brandeis papers, I stumbled across a remarkable letter written by Brandeis’ fellow justice Benjamin Nathan Cardozo. Since there does not appear to be any published collections of Cardozo’s letters, I decided to post it. While not historically or legally significant, I found the letter interesting for a couple reasons. Cardozo has always looked so stern in all of the photographs I have seen of him, so it was a pleasant surprise to see how witty and playful it was. But at the same time, it is a rather sad letter. Written in July 1935, just a few weeks after suffering a heart attack, he writes of his recovery and his frustration with the various doctors and nurses attending him. He would recover enough to return to court the next term, but this was the beginning of the end. He never regained his full strength and he would die from a stroke three years later the age of 68.
I am providing a transcript of the letter below, along with a couple footnotes. Below that are the scans of the 4 pages of the letter for those who want to read the original. Unlike Brandeis, Cardozo’s penmanship is very clear and easy to decipher, although there are a couple places where I had to do some guesswork.
July 24, 1935
Dear Justice Brandeis,
It is good to hear from you and to learn of your well-being. You have been often in my thoughts, but I have put off writing to you till I could send a final report as to my health which hasn’t been 100% as it should be.
The doctors found me in poor shape when I came here from Washington, and before I knew what they were up to, they had put me to bed with a day nurse and a night one and all sorts of unconstitutional restraints upon fundamental liberties. Their tyranny proved to be beneficial, for I have made steady progress toward recovery. The nurses – praise be to God – have now departed. I feel much as the French must have felt upon the fall of the Bastille. A good many arbitrary and unconstitutional restraints still vex me: up to date, I have not been allowed beyond the porch, and am put to bed like your grandchildren at supper time – very likely they sit up later. Even so, the stream of liberty is widening.
Your letter gives me welcome hints of books worth reading. I have before me now “The Legacy of Greece.” My race consciousness was disturbed when I looked over the titles of the series and observed that I had not yet read “The Legacy of Israel.” What you write of it will move me to repair that omission. I read Dr. Kaplan’s book  last summer, but Dr. Levinthal’s  is in my library at Washington; I neglected to bring it with me. When I consider my leisure, I am chagrined that I haven’t read more than I have. It is astonishing how doctors and nurses make inroads on one’s time, so that the day passes with nothing done. And then the “certs” we always have with us.
Thanks for your letter and cordial greetings to Mrs. Brandeis, your daughter and the other members of the Chatham household.
 Edited by Richard Winn Livingstone, Clarendon Press, 1921.
 Edited by Edwin Robert Bevan, Clarendon Press, 1927.
 My colleague Kurt Metzmeier has speculated that is Judaism as a Civilization by Mordecai Menahem Kaplan.
 I’m assuming this is The Jewish Law of Agency by Israel Herbert Levinthal. We have Brandeis’ copy of this book in our library which, apparently was given to him by Levinthal himself.
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The Journal of Supreme Court History can usually be counted to offer some new information on John Marshall Harlan and Louis D. Brandeis, and their latest issue (volume 39, number 1) does not disappoint in that regard. The first article in the issue is titled “Plessy v. Ferguson: the Effects of Lawyering on a Challenge to Jim Crow” and it is by Seton Hall history professor Williamjames Hull Hoffer. Harlan doesn’t actually figure much in the article, but nevertheless it is a fascinating look at the events that lead up to the case and the legal arguments that were used before the Supreme Court.
Brandeis is name-checked in two articles that are not specifically about him. The first, “The Justice Who Changed His Mind: Oliver Wendell Holmes, Jr. and the Story behind Abrams vs. United States” is by Thomas Healy who is also from Seton Hall. Healy discusses the evolution of Holmes’ views on free speech and the behind the scenes efforts of friends like Harold Laski and Learned Hand to change his mind . He makes a strong argument but I suspect that he gives short shift to Brandeis’ influence, which is hard to quantify. There is plenty of documentary evidence (letters etc.) of the Hand/Laski campaign and Healy makes good use of it. Since Brandeis saw Holmes nearly everyday during the Supreme Court’s terms (they would walk home together at the end of each day) there was no need to write each other. It looks to me that Brandeis was at first content to follow Holmes’ lead on First Amendment cases but then as his thinking on the subject changed, he was able to pull Holmes along in his wake. But without any written evidence that assertion would be difficult to prove.
Brandeis’ presence is even fainter in the third article, “Felix Frankfurter and his Proteges: Re-examining the ‘Happy Hot Dogs'” by Sujit Raman. Raman discusses Frankfurter’s cultivation of Harvard Law School’s brightest students into his inner circle and then into various government positions, such as clerkships for Brandeis and Holmes. Many of his former clerks made no secret about how much they were influenced their time with Brandeis, but they were just as influenced by Frankfurter and his placement of them in key positions influenced the federal government for many years, particularly during the New Deal.
And finally, an article from the latest issue of the Notre Dame Law Review. I have mentioned David Bernstein before. He has been writing a lot about the early 20th century Progressives, and how he feels they were anti-individual rights. His latest article is about Brandeis again and is titled “From Progressivism to Modern Liberalism: Louis D. Brandeis as a Transitional Figure in Constitutional Law” (volume 89, number 5 of the Notre Dame Law Review, pp. 2029-2050, also available on SSRN.) In it, he outlines what he views as Brandeis’ evolution as a Holmes-style Progressive to something of a bridge to the “mid-century legal liberals.” (Interestingly, he also credits Brandeis with shaping Holmes’ views on free speech. I wonder if he will still feel that after reading Healy’s article.) Well written and a thought-provoking read, this article provides more ammunition in Bernstein’s campaign against early 20th century Progressivism.
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While rooting around in our collection of Harlan papers, I found a number of items that had been misfiled. Presumably they had been put on display many years ago and then just thrown back in a random box. The most interesting item in the set was a November 27, 1883 letter to Harlan from Frederick Douglass in regards to his recent dissent in the Civil Rights Cases. I have always been interested in Douglass so finding the letter was real thrill. A cursory search on the Internet did not reveal any references to the letter, so I decided to go ahead and post it.
While it may be stretching things a bit to call the two men friends, they were certainly acquaintances and admirers of each other. They first met in 1872 while on the campaign trail for Rutherford B. Hayes. At their first meeting they were seated next to each other at a dinner table — a circumstance Harlan always related with pride, even when political opponents tried to use it against him in his political campaigns. They heard each other speak on the campaign trail, and Harlan said later that Douglass “had no equal as a public speaker. He would have made a great Senator.” Their paths crossed a number of times after that, and when Douglass died, Harlan attended his funeral.
The Civil Rights Cases is a name given to five cases that were filed in response to violations of the Civil Rights Act of 1875. Even though the cases were filed separately, the Supreme Court lumped them together and in a 8-1 decision held that the Civil Rights Act was unconstitutional — a decision that helped pave the way for segregation and Jim Crow laws. Like he would be in the later Plessy v. Ferguson decision, Harlan was the Court’s sole dissenter, and his dissent made headlines across the country. While Douglass was, of course, appalled by the court’s decision, he also appreciated Harlan’s stance on the issue and made a number of public pronouncements to that effect. But here in this letter, one can see Douglass’ views as privately expressed from one individual to another:
Washington D.C. Nov. 27, 1883
Honorable John M. Harlan
Your exalted position on the Bench of the Supreme Court of the United States, and the freedom from the influence of praise or blame implied in that position has made me hesitate to express to you by letter the grateful feeling with which I have read your dissenting opinion from your Brothers in respect of their decision declaring the Civil Rights Bill unconstitutional and void, though I have not been slow or silent about expressing my feelings to the public about that opinion. What I have said to the public about that paper I now take the liberty (I hope not unwarrantable) to say to you by letter, and that is, I have read it with boundless satisfaction and hold it to be a triumphant vindication and justification of your dissent from the view taken of the Civil Rights Bill by your Brother Justices. It seems to me to be absolutely unanswerable and unassailable by any fair argument at any point for there is not a single weak point in it. You had an important and in some respects a difficult and delicate work to do, and you have done it with amazing ability skill and effect. It should be scattered like the leaves of Autumn over the whole country, and be seen, read and pondered upon by every citizen of the country and if I had means I would cause it to be published in every newspaper and magazine in the land. The Bible tells us that one shall chase a thousand and two put ten thousand to flight. However this may be in respect to physical combat, in the moral & intellectual field this has proved true a thousand times over, and never more true than in the present instance. I am glad sir, that in this day of compromise and concession where it is so much easier to drift with the current, to sacrifice conviction for the sake of peace, that you have been able to adhere to your convictions and thus save your soul. When self respect is lost the soul is lost. I have nothing better to say of your Brothers on the Supreme Bench, though I am amazed and distressed by what they have done. How they could at this day and in view of the past commit themselves and the country to such a surrender of National dignity and duty, I am unable to explain. I have read what they have said, and find no solid ground in it. Superficial and [???], smooth and logical within the narrow circumference beyond which they do not venture, that is all. I took my pen only to assure you of my unalloyed satisfaction with your opinion and my gratitude and admiration. I wish to assure you if you are alone on the Bench, you are not alone in the country. I hope you have seen the powerful speech made in Lincoln Hall by Col. R. G. Ingersoll. It is now in pamphlet form and will be widely circulated. There were speeches made on the same occasion by Rev. Doctor Rankin and Judge Shellabarger which ought to go out to the country. Excuse me for taking up so much of your time. I have sent you this not because you need the utterance – but because it was a need of my own.
I am, dear and honored sir,
Yours truly and gratefully
Update 2/24/2014: I figured where in the collection the letter is supposed to be placed — right after letters by Ingersoll and Rutherford B. Hayes. On the other side of the letter is an undated page from a nineteenth century newspaper called The American Reformer. On the page is a column written by Douglass about the decision by the Court. I’m attaching a pdf copy of the article for those who want to read more of what Douglass had to say. And for those who don’t want to download the article but want to see what he had to say about Harlan, here are the two relevant excerpts:
[Harlan] has felt himself called upon to isolate himself from his brothers on the Supreme Bench, and to place himself before the country as the true expounder of the Constitution as amended, and of the duty of the National Government to protect and defend the rights of citizens against any infringement of their liberty. The opinion which he has given to the country, as to the constitutionality of the Civil Rights Bill, places his name among the ablest jurists who have occupied the Supreme Court. No utterance from that Bench, since the celebrated and splendid opinion given by Judge Curtis against Judge Taney’s infamous Dred Scott decision, has equaled this opinion in ability, thoroughness, comprehensiveness and conclusive reasoning. Compared with it the decision of the eight judges was an egg shell to a cannon ball. We are told in Scripture that one shall chase a thousand, but one opinion like this could put to flight ten thousand of such decisions as the thin, gaunt and hungry one which denies the constitutionality of the Civil Rights Bill, and the duty of the Federal Government to protect the rights and liberties of its own citizens. No man, unless blinded by passion, prejudice, or selfishness, can read this opinion without respect and admiration for the man behind it. Where the decision of the Court is narrow, superficial and technical, the opinion of Judge Harlan is broad and generous, and grapples with substance rather than shadow, with things as they are rather than with abstractions…
As to Justice M. Harlan, no man in America at this moment occupies a more enviable position. His attitude is one of marked moral sublimity. The marvel is that, born in a slave State, as he was, and accustomed to see the colored man degraded, oppressed and enslaved, and the white man exalted; surrounded by the peculiar moral vapor inseparable from the slave system, he should so clearly comprehend the lessons of the late war and the principles of reconstruction, and, above all, that in these easy going days he should find himself possessed of the courage to resist the temptation to go with the multitude. He has chosen to discharge a difficult and delicate duty, and he has done it with great fidelity, skill and effect. In other days, when Garrison, Phillips, Sumner, Wilson and others spoke, wrote and moved among men, Old Massachusetts did not leave to Kentucky the honor of supplying the Supreme Bench with a moral hero. That State then spoke through the cultivated and legal mind of Judge Curtis. Happily for us, however, Kentucky has not only supplied the needed strength and courage to stem the current of pro-slavery reaction, but she has also supplied in Justice Harlan patience, wisdom, industry and legal ability, as well as heroic courage.
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Do you have 3.2 million dollars burning a hole in your pocket? If so, you can own one of the houses Louis D. Brandeis grew up in. Today’s Courier-Journal has a story about how the dermatologists who own the old Brandeis home on Broadway are looking to relocate to the east side of the city, so they are putting the historic building up for sale. It would be great if the University of Louisville would buy it, but I probably shouldn’t get my hopes up.
I have written about this house before, but it looks like I might have gotten some information wrong in the previous post. In it, I quoted a Courier-Journal article from 1939 that said the Brandeis family built the house in 1872. (The article also claimed that this was the same year that Adolph Brandeis started his grain business with William W. Crawford.) However, today’s Courier-Journal article states that the house was built in 1864. After looking into the discrepancy, I have decided that the 1864 date is probably the correct one. The earlier Courier-Journal article states that Brandeis and Crawford supposedly built houses next to each other the year they started their business. But they were a going concern long before 1872; they apparently made a lot of money selling supplies to the Union Army during the Civil War. Philippa Strum states the business was founded in 1855. Strum also gives the following chronology: “When Brandeis was four, his parents moved from their little house on Center Street … to a larger one on First Street, which they had remodeled. A few years later they moved again, this time to an impressive limestone-fronted house they had built on fashionable Broadway.” The 1864 date is a much better fit with this chronology than 1872 is. Also, 1872 is the year that Brandeis’ father disbanded his business, which seems like it would have been an awkward time to have had a new house built.
The difference in dates is significant because of the historical marker in front of the house on Broadway that proclaims it as “Brandeis’ Boyhood Home.” If the house had in fact been built in 1872, then Brandeis would only have lived in it for a matter of months. Shortly after disbanding his business, Adolph Brandeis took his family of a trip to Europe. Louis Brandeis would not return to Louisville until 1875, and then he would leave shortly thereafter for Harvard. Other than occasional short visits, Brandeis never lived in Louisville again. So if the house was built in 1864, then Brandeis would lived there for about 8 years, longer than in either of his two other Louisville homes, thus making it indeed his boyhood home.
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